#### Commonwealth *ex rel.*Needles *et al. versus*Henszey.

1. Under the provisions of the consolidation act of Philadelphia (February 2d, 1854) the councils shall determine the qualifications of their members, as the legislature of Pennsylvania. *Held,*that complaint of an “ undue election ” of a member, is to be determined by the councils, and not by quo warranto.

2. By act of April 27th, 1864, in case of a vacancy in the councils, the voters shall elect a person for the unexpired term ; and the sheriff must give notice, as in all elections, “ in case such vacancy shall occur twenty days previous to the election.” A vacancy occurred within the twenty days. The sheriff gave eight days’ notice of the election. The person returned took his seat. A quo warranto was issued against him, on the ground of the insufficiency of the notice. *Held,*that the complaint was of an “undue election,” and the writ would not lie.

3. *Held also,*that in this case^there was practically ample notice.

March 31st, 1873.

"Before Erad, C. J., Agnew, Sharswood, and Mercur, JJ. Williams, J., at Nisi Prius.

Error to the Court of Common Pleas of Philadelphia, No. 155, to January Term, 1873.

A suggestion was filed in the Court of Common Pleas on the 12th of October, 1872, by Caleb PI. Needles and John Kames, citizens and taxpayers and voters in the Tenth Ward of Philadelphia, averring that A. Wilson Henszey unlawfully exercised the office, etc., of a member of the Common Council of that ward. The suggestion set .out that by the act of March 21st, 1861, it was provided that each ward should have a member of the Common Council for each 2000 *102inhabitants, according to the list of the preceding year, who shall serve two years, etc. By act of April 16th, 1866, it was declared that the true intent and meaning of the act of 1861 was that the “preceding year” mentioned in that act was to be held “ to be the year preceding the organization, and not the election.” According to the last fist of taxables preceding the last organization of the Common Council there were but 5800 persons on the list in the Tenth Ward, by which the ward was entitled to but two members in the Common Council. During the year 1871, and prior to the general election, the Tenth Ward was represented by two common councilmen, Q-. W. Hall and A. Omensetter.' The term of the latter would expire January 1st, 1872, and of right but- one vacancy in the office was to be filled at the election in October, 1871. But, notwithstanding, the voters of the Tenth Ward elected two, to wit, A. Omensetter and A. Wilson Henszey, the defendant, the -ward thus having three representatives. On the 21st of September, 1872, a quo' warranto issued against Omensetter and Henszey, to show their right to exercise the office of common councilmen, and on the 28th of September judgment of ouster was issued against them.

By act of April 27th, 1864, section 1, it is provided that in case of a vacancy in the councils, the voters of the ward shall, at the next election, elect a person for the unexpired term. By section 3 the sheriff shall give notice of all elections under the provision of the foregoing section, in case the vacancy shall occur twenty days previously to the election. At the election of the 8th pf October then next, in pursuance of the proclamation by the sheriff, on the 1 st of October, and within twenty days of the time the vacancy occurred, Henszey was elected councilman of . the ward for his former uuexpired term. The writ was issued on the day of the filing of the suggestion.

The defendant pleaded, admitting the allegations of the suggestion, and averred that on October 8th, 1872, there was a vacancy in the office of Common Council in the Tenth Ward, and at the election on that day the voters of that ward voted for a councilman from that ward, and Henszey received the greatest number of votes ; that on the 9th day of October, 1872, he received a certificate of his election, and at a stated-meeting of the council, held on the 10th of October, he presented his certificate, and was duly sworn aud admitted to a seat as common councilman from the Tenth Ward.

The Commonwealth demurred to the plea, that it was not and did not profess to be an answer to the suggestion ; that it asserted and implied that an election may be held to fill *103the office of common councilman when, the vacancy occurs within twenty clays before the time fixed for holding the next general election.

The Court of Common Pleas overruled tbe demurrer, Ludlow, J., delivering the opinion. He referred to .the 1st section of the act of 1864, recited in the suggestion, and to the 3d section of the act of May 20th, 1864, which enacts, “ that in case of a vacancy occurring in either branch of the councils of Philadelphia, the same shall be filled at the next election for the unexpired term.” He said further: “ . . . It will be observed that both of these laws were passed in the same year. The third section of the first law provides for a notice of twenty days, while the second law is in substance but a repetition of the first section of the act of April 27th, and is silent as to any further provisions relating to the subject.

“ We are in duty bound to give a legal effect to every law of the Commonwealth, and if we do not declare that the third section of the act of May 20th has a meaning beyond the reach of any interpretation which may be put upon the language of the act of April 27th, of the same year, we undoubtedly say that the third section of the act of May 20th is not only a nullity, but that its language is but useless jargon. Believing that the legislature intended to do something, we discover, we think, what that intention was, when we find that a case might arise *within*twenty days of the then next general election not provided for in the act of April 27th ; to meet such a case as that, the third section of the act of May 20th was passed. . . . The sheriff gave to the voters of the Tenth Ward public notice of this election on the 1st of October; every elector knew perfectly well that two members of councils were to be elected. ...”

The Commonwealth sued out a writ of error. The assignments of error were, overruling the demurrer and entering judgment for the defendant.

*W. II. Hawle*and Meredith, for plaintiff in error.

*C. Id. T. Collls*and *William B. Mann,*for defendant in error.

Mr. Chief Justice Read

delivered the opinion of the court, April 9th, 1873.

We have affirmed the judgment of the court below, not for the reasons assigned by them but for a reason which affects the whole proceeding, that the writ of quo warrantowa,s not the proper remedy. By the 35th section of the consolidation act of February 2d, 1854, “The Select,and Common Councils respectively shall in like manner as each *104branch of the legislature of this Commonwealth judge and determine upon the qualifications of their members.” The mode of trial of a contested election is then prescribed, and it is enacted that “ no complaint of an undue election or false return shall be acted upon, unless presented within teu days after the organization of councils, nor unless signed by at least fifteen qualified voters of the proper ward, and at least three of whom shall take and subscribe an oath-or affirmation that the facts set forth in said petition or complaint are true.”

The only grounds in this case was that the sheriff had not given notice of the election of councilman in the Tenth Ward twenty days before the election, which if a good ground of complaint comes within the statutory words, “undue election.” The defect if one, was known at and before the election, and an immediate trial might then have been had. The Commonwealth *v.*Allen *et al.,*which was a case of forfeiture, has no application to the case before us. This was the specific remedy and *quo warranto*did not lie. In this case practically there was ample notice, and the defendant was elected by a large majority.